Jury Duty, Small Law Firms, Trials

Beyond Biglaw: Lessons From Jury Duty (Part 1)

What did lessons about litigation did Gaston Kroub learn from his recent jury duty?

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No matter how often you appear in court as a litigator, there is always something to learn. Good litigators absorb feedback from many sources, including judges, colleagues, clients, and opposing counsel. Depending on how often one goes to trial, you may be lucky enough to get feedback from an actual jury. And if the case is “high value” enough, the client may be happy to pay for mock jury exercises as well. Whenever you can get feedback from “regular people” you take it, and hopefully learn from it, as that feedback represents the valuable thoughts of the non-lawyer participants in our judicial system.

As valuable as “regular” juror feedback is for litigators, there is also value to feedback from a litigator who recently served on a jury. The benefit of hearing from a fellow litigator who recently had the opportunity to “see the system” from a different perspective should be obvious. So here goes. I was recently called for jury duty myself, for the first time as an experienced lawyer. I previously had jury duty around the time I was either graduating law school or was a new Biglaw associate, but I can’t remember exactly when.

My perspective is much different now, regardless of when my last jury duty experience was, because now I have the benefit of associating my experience as a juror with my experience at trial on behalf of clients. My recent experience served to remind me of some important considerations for litigators (in addition to getting me out of the house at an earlier hour than usual). Yes, I was not very happy trudging from the subway to the courthouse in downtown Brooklyn at 8:30 a.m. — in the rain. The fun continued with me waiting on a TSA-style line for entry into the building. This was actually not a real problem for me; I am used to the “courthouse entry” procedure from my litigation and pro bono work. For my compatriots on the line, however, the experience was obviously disconcerting. More than one person grumbled openly about needing to empty their pockets, or the fact that it felt like the court marshals were treating everyone with disdain.

From the security line, I learned my first lesson of the day: a visit to jury duty is not a visit to a familiar setting for most people — and that can make them grumpy. Especially since most people would rather be at work or home to begin with. The TSA-analogy was one I heard while on the security line, but at least with the airport there is the chance to go to a place you want to be (or a return home) in exchange for the aggravation. To be fair, once everyone was inside the courthouse, staff tasked with attending to the jury pool did do their best to keep the mood light, and genuinely seemed concerned with making the experience as pleasant as possible. The free (and working) wi-fi was a welcome bonus, and at least allowed people to get some work done during the day. Despite the amenities, however, it was apparent that no one really wanted to be there — the vibe was a “graduating seniors enduring the last few days of school” one at best.

So if we accept that lesson one is that jurors truly do not want to be there, and that the surroundings they find themselves in can be uncomfortable and unfamiliar, then we as litigators should remind ourselves that we need to do our part — as advocates — to make the experience more pleasant for jurors. You may think that whether or not jurors “want to be there” is unimportant. But it is not. I should not need to prove to anyone that jury duty is something people grumble about needing to do. For those that need a reminder, I’ll conclude this week’s column with an anecdote that will bring the lengths that people are willing to go to in order to avoid jury service into sharp focus. Next week, I’ll focus on some concrete reminders I want to share based on my experience. But for now, I want to establish just how much jurors don’t want to be there — because if it inspires one trial attorney to take steps to make his trial presentation more engaging, it will be worthwhile.

Imagine a room of 200+ prospective jurors. A court spokesman runs through the day’s agenda on a microphone, taking pains to explain to people that all the typical excuses (prejudice against humanity, fear of lawyers, sick great-aunt, etc.) would not work to release them from their jury service any quicker. The spokesman gets to the part about jurors needing to be comfortable English-speakers in order to serve. He then invites people who don’t feel comfortable with their knowledge of English to get up and go to the next room for an interview. This announcement was made in English. And over a dozen — maybe two dozen — people got up and walked into the next room, despite the laughter from the crowd. Lesson one: jurors do not want to be there.

Please feel free to send comments or questions to me at [email protected] or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome. For those interested in the intersection of intellectual property litigation and investing, I have also started a new blog/newsletter, “The Markman Note,” which is being hosted at Mimesis Law. There will be a video component to the project that will be launching soon as well. Feel free to check it out and let me know of any thoughts or suggestions.

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Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique. The firm’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at [email protected] or follow him on Twitter: @gkroub.

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